Hong Kong hit by “city-wide strike” - how should employers respond?

The strike - reportedly involving more than 14,000 employees across 20 sectors - marks the latest instalment of protests that were triggered mainly by the introduction of the controversial “Extradition Bill” in June. Hong Kong’s employers have responded in different ways. Some have shut their doors in solidarity or due to anticipated lack of staff, or asked their employees to work from home. Others are trying to maintain business as usual.

Whichever position employers take, they will most likely have queries and concerns regarding the legality of the city-wide strike and how to respond to it from an employment law and employees relations standpoint.

The law

Hong Kong's Basic Law states that "Hong Kong residents shall have…the right and freedom to form and join trade unions, and to strike” (Article 27). But this does not necessarily mean that employees have an unfettered constitutional right to strike, irrespective of the circumstances.

A strike is not defined in the Basic Law, but the Trade Unions Ordinance describes it as the cessation of work by a body of employed persons done as a means of compelling the employer to accept or not accept terms and conditions of employment.

In accordance with the Employment Ordinance, where striking constitutes an activity of a trade union, an employee who is a member or officer of that union has the right to take part in the strike during working hours. This is provided arrangements have been agreed or the employer has given consent that the employee can take part. In such circumstances, an employee cannot be summarily dismissed as a result of participating in the strike.

Where does this leave us when it comes to a “city-wide strike” for political purposes? There is no specific law or protocol for dealing with such action, so employees who decide not to attend work to join the strike may find that their employer deems their absence to be unauthorised, if consent to take leave was not sought in advance.  

An employer cannot prevent employees from exercising their constitutional rights to freedom of expression, assembly, procession and demonstration under Article 27, but it is entitled to request that they comply with their terms and conditions of employment during working hours.

Practical tips for employers

Employees may have applied for annual leave to participate in the strike. Assuming they complied with their employer’s annual leave process and have received permission for the leave, they are entitled to use their time off however they wish. This is so long as the employee’s actions during the leave do not negatively impact on the employer’s reputation or the employee’s ability to carry out his or her role going forward.

Other employees may have called in sick in order to go on strike.  Sick-leave entitlement should only be used where an employee is genuinely ill or injured, not where they require short-notice time off to strike or protest. Should an employee be found to have taken sick leave to strike, an employer would be entitled to take disciplinary action against them (which could include dismissal, where appropriate).

What if an employee has simply not attended work in order to strike?  An employer would be entitled to regard this as unauthorised absence, meaning it would not have to pay the employee for the day and could also take disciplinary action against him/her (again potentially including dismissal).

Some employers may have permitted employees to take special leave in order to go on strike, in which case they should not face any repercussions. Employees who have been told to work from home, as part of a business contingency plan, should face no penalties for not attending work (but should remember they were not given permission to strike, merely to work at home).

As the protests continue in Hong Kong, employers should consider putting in place a business contingency plan if they have not done so already. They may also wish to gently remind their employees that company policies should be followed if they wish to take leave from work, and that taking unauthorised leave of absence may lead to consequences.